Metro Machine Corporation v. DOWCP , 846 F.3d 680 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2525
METRO MACHINE CORPORATION, d/b/a General Dynamics NASSCO-
Norfolk; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; DELORES STEPHENSON,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(2014-0425)
Argued: December 8, 2016 Decided: January 20, 2017
Before TRAXLER, FLOYD, and THACKER, Circuit Judges.
Petition denied by published opinion. Judge Traxler wrote the
opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Frank Nash Bilisoly, VANDEVENTER BLACK, LLP, Norfolk,
Virginia, for Petitioners. Gregory Edward Camden, MONTAGNA,
KLEIN, CAMDEN, LLP, Norfolk, Virginia; Matthew W. Boyle, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen
James, Associate Solicitor, Mark Reinhalter, Counsel for
Longshore, Sean G. Bajkowski, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent United States Department of
Labor.
TRAXLER, Circuit Judge:
Metro Machine Corporation and Signal Mutual Indemnity
Association, Limited, petition for review of an order of the
Benefits Review Board affirming decisions of an ALJ granting a
claim for medical benefits under the Longshore and Harbor
Workers’ Compensation Act (“the Act”), see 33 U.S.C. § 907.
Finding no reversible error, we deny the petition.
I.
Before setting out the facts underlying this appeal, we
will begin with a brief discussion of some of the relevant legal
concepts.
The Act “creates a comprehensive federal scheme to
compensate workers injured or killed while employed upon the
navigable waters of the United States.” Estate of Cowart v.
Nicklos Drilling Co., 505 U.S. 469, 470-71 (1992). The Act
requires employers to furnish medical care to employees who
suffer an “injury” within the meaning of the Act. 33 U.S.C.
§ 907. As is relevant here, “injury” is defined as an
accidental injury or death arising out of and in the
course of employment, and such occupational disease or
infection as arises naturally out of such employment
or as naturally or unavoidably results from such
accidental injury.
33 U.S.C. § 902(2). “Arising ‘out of’ and ‘in the course of’
employment are separate elements: the former refers to injury
causation; the latter refers to the time, place, and
2
circumstances of the injury.” U.S. Indus./Fed. Sheet Metal,
Inc. v. Director, OWCP, 455 U.S. 608, 615 (1982) (“U.S.
Industries”). “Through what has come to be known as the
aggravation rule, the courts have extended [§ 902(2)’s)]
definition such that, if an employment injury aggravates,
accelerates, or combines with a previous infirmity, the entire
disability is compensable.” Newport News Shipbuilding & Dry
Dock Co. v. Fishel, 694 F.2d 327, 329 (4th Cir. 1982).
Because Congress recognized that the elements of § 902(2)
“would be difficult to prove,” Director, OWCP v. Greenwich
Collieries, 512 U.S. 267, 280 (1994), Congress provided the
§ 20(a) presumption, the proper interpretation of which is a
central issue in this appeal. The statute describing the
presumption provides, “In any proceeding for the enforcement of
a claim for compensation under this Act it shall be presumed, in
the absence of substantial evidence to the contrary . . . [t]hat
the claim comes within the provisions of this Act.” 33 U.S.C.
§ 920(a).
The parties agree that to invoke the presumption, an
employee must allege a prima facie case that “(1) an injury or
death (2) . . . arose out of and in the course of (3) his
maritime employment.” Universal Maritime Corp. v. Moore, 126
F.3d 256, 262 (4th Cir. 1997). To establish this prima facie
case, a claimant must show “(1) that he suffered physical harm
3
and (2) that a workplace accident or workplace conditions could
have caused, aggravated, or accelerated the harm.” Bath Iron
Works Corp. v. Fields, 599 F.3d 47, 53 (1st Cir. 2010) (emphasis
added). Once the prima facie case is established, the burden of
production shifts to the employer, who must produce evidence
that could justify a reasonable factfinder in concluding that
the claimant either did not suffer physical harm or that no
workplace accident or workplace conditions caused, aggravated,
or accelerated the harm. See id.; accord Moore, 126 F.3d at
262-63. If the employer satisfies this burden, the presumption
falls out of the case, and the factfinder is left to find the
necessary facts without considering the presumption. See Moore,
126 F.3d at 262-63.
II.
We now turn to the facts before us. John Stephenson
(“Claimant”) worked for Metro Machine Corporation as a
pipefitter in Virginia from August 1983 until August 2011. He
has a long history of breathing problems. He suffered from
asthma until he was approximately eight years old, and he began
smoking when he was 16. He has received treatment for
bronchitis caused by his smoking since the early 1980s. And he
received treatment for a productive cough and wheezing in 1985
and 1986. Additionally, he regularly suffered from bronchitis
during winters, and his bronchitis was treated with antibiotics.
4
He has been taking steroids for his wheezing and coughing since
1986. He was diagnosed with chronic obstructive pulmonary
disease 1 (“COPD”) in 1996 and emphysema in 2001.
On February 18, 2008, Claimant was working in the
superstructure of a vessel. During his workday, which lasted
more than eight hours, he inhaled fumes from welding and burning
and the application of epoxy paint (“the exposure”); inhaling
these fumes caused him breathing problems. After Claimant
finished his shift and went home, the problems continued all
night, prompting him to go to the emergency room the next
morning. At the hospital, he was diagnosed with “[e]xacerbation
of chronic obstructive pulmonary disease.” S.J.A. 1. He was
admitted and remained hospitalized for eight days, during which
time he was prescribed steroids, inhalers, empiric antibiotics,
and albuterol to treat his COPD. Upon discharge, he was
prescribed a nebulizer and oxygen concentrator, which he had not
used prior to the hospitalization.
Metro paid Claimant compensation for temporary total
disability from February 19, 2008, through August 3, 2008, and
later for temporary partial disability from September 16, 2009,
through September 29, 2009. When he returned to work, he was
1COPD is “any disorder characterized by persistent or
recurring obstruction of bronchial air flow, such as chronic
bronchitis, asthma, or pulmonary emphysema.” Dorland’s
Illustrated Medical Dictionary 530 (32nd ed. 2012).
5
restricted from going aboard the ship and limited in the amount
of weight he could lift.
Claimant voluntarily retired in 2011. Since his
retirement, he has begun using his oxygen concentrator more
frequently. He has continued taking the same medications he
took when he was hospitalized, but he has increased his dosages.
He reports that his coughing has improved over time although his
shortness of breath has worsened.
In October 2011, Claimant was treated for a fracture at the
T7 vertebra by Dr. Alireza Jamali. Dr. Jamali stated in an
office note that the fracture was “most likely due to excessive
coughing.” S.J.A. 8. In February 2012, Dr. Jamali wrote that
Claimant “required a long-term intake of the steroid for
management of his respiratory condition,” which “contributed to
osteoporosis and pathological fracture of T7.” S.J.A. 15. Dr.
Jamali opined that the fracture was “directly due to long-term
steroid intake” from the management of Claimant’s respiratory
condition. S.J.A. 15.
Asserting that his injuries were the result of the
exposure, Claimant requested that Metro pay for his medical
treatment. Metro refused and filed a notice of controversion on
March 15, 2012, asserting that the treatment he had requested
was not related to the exposure. On March 30, 2012, Claimant
filed a claim for compensation, Form LS-203, under the Act. In
6
the spaces on the form calling for the date of the injury and a
description of the accident, he answered “2/18/2008” and
“exposure to fumes,” and in the space calling for identification
of the part of body affected, he answered, “Lungs.” J.A. 11.
On May 15, 2012, a claims examiner held an informal
conference. Memoranda memorializing the conference indicate
that Claimant had sought medical benefits for both his ongoing
COPD and his fractured vertebra. The claims examiner
recommended payment of benefits for both conditions.
The ALJ held a hearing regarding the claim on September 25,
2013. The parties stipulated that Claimant injured his
pulmonary organs on February 18, 2008; that the injury arose out
of and in the course of Claimant’s employment with Metro; and
that the Act applies to the claim.
The medical evidence introduced at the hearing included the
May 2013 deposition of Claimant’s long-time treating physician,
Dr. Ignacio Ripoll, who was board-certified in pulmonary
medicine and had been a practicing pulmonary specialist for
approximately 30 years. The evidence also included three
letters Dr. Ripoll had written before the deposition concerning
the possible causal relationship between the exposure and
Claimant’s worsening COPD. The letters evidenced Dr. Ripoll’s
changing views regarding the existence of such a causal
relationship.
7
The ALJ summarized the contents of the three letters:
In a letter dated January 10, 2012, Dr. Ripoll
wrote that Claimant suffers from severe COPD with a
grade IV impairment using the AMA guides. Dr. Ripoll
listed the dates and results of several pulmonary
function tests beginning in June of 2008, noting that
at that time Claimant’s COPD was severe and
deteriorating at a rate of three percent per year.
Dr. Ripoll noted that Claimant had more symptoms after
the 2008 exposure than prior to it and therefore found
with a reasonable degree of medical certainty that the
exposure worsened his pulmonary condition, which has
declined since that time.
After receiving pulmonary function testing
results dating back to January of 1986, Dr. Ripoll
wrote a follow-up letter dated July 16, 2012. Dr.
Ripoll opined that the historical data cast doubt on
the role of fume exposures respecting Claimant’s
declining respiratory function. Dr. Ripoll stated
that the data indicated that the exposure caused an
acute pulmonary event, but did not affect the rate of
progression of the underlying disease. Dr. Ripoll
included the caveat that the November 2001 and January
2007 results could be artificially low due to some
acute condition at those times and additional testing
after the January 2007 values could indicate whether
Claimant’s lung function improved to a stable
baseline.
A November 28, 2012 letter included a graph of
Claimant’s FEV1 [one-second forced expiratory volume
results] from 1986 until 2011. Dr. Ripoll noted that
the slope of Claimant’s FEV1 decline changed after
Claimant’s exposure to fumes in 2008. Dr. Ripoll
found that the rate of deterioration increased
following the inhalation injury and thus concluded
that it was highly likely that the February 2008
inhalation injury caused the rapid deterioration in
lung function seen after that time.
J.A. 193-94 (citations omitted).
Finally, in his 2013 deposition, Dr. Ripoll described
Claimant’s lung disease as “chronic obstructive lung disease or
8
chronic bronchitis, chronic inflammation.” J.A. 43. He
testified that Claimant’s lungs had been irreparably damaged by
his many years of smoking, and that his lung function would
continue to deteriorate despite any medications he might take.
Nevertheless, he testified that he continued to believe, to a
reasonable degree of medical certainty, that the data showed a
significant acceleration in the progression of the lung disease
after the 2008 exposure.
Following the hearing, the ALJ found that Claimant
established a prima facie case by showing a harm – the worsening
of his COPD – and a work incident that could have caused or
aggravated that harm. Therefore, he found Claimant entitled to
the § 20(a) presumption that the worsening of his COPD was
compensable.
The ALJ observed that Metro sought to show that any
aggravation of Claimant’s COPD caused by the exposure was only
temporary. In support of this position, Metro submitted the
opinion of Dr. Ripoll, along with treatment records. Given the
contradictory and uncertain opinions that Dr. Ripoll had issued,
however, the ALJ concluded that Dr. Ripoll’s opinions were
“entitled to little weight” and “insufficient to rebut the
presumption. J.A. 205. Noting that no other evidence tended to
show that any exacerbation of Claimant’s COPD caused by the
exposure was only temporary, the ALJ concluded that Metro had
9
not rebutted the § 20(a) presumption. He thus awarded Claimant
past and future medical benefits for his work-related COPD.
Despite prevailing regarding the COPD, Claimant moved for
reconsideration, contending that the ALJ had failed to address a
part of his claim that the parties had addressed at the hearing,
namely, his claim that he was entitled to medical treatment for
his vertebra fracture. The ALJ granted the motion and proceeded
to consider the compensability of the fracture. The ALJ
rejected an argument by Metro that the § 20(a) presumption did
not apply since the fracture was not specifically identified on
Claimant’s Form LS-203 that he had filed in March 2012. The ALJ
further found that Claimant established a prima facie case
linking his fracture to excessive coughing from, and the
steroids he was prescribed for, his work-related COPD.
Regarding Metro’s attempt to rebut the prima facie case, the ALJ
concluded that the fact that Claimant, prior to the exposure,
had had respiratory problems and took steroids did not
constitute evidence that the primary injury did not cause,
aggravate, or hasten his fracture. Finding that Metro had not
rebutted the presumption that the fracture was compensable, the
ALJ awarded Claimant medical benefits for the fracture.
Metro appealed the decisions concerning the compensability
of the COPD and fracture to the Board, which affirmed. The
Board held that substantial evidence supported the ALJ’s finding
10
that Claimant established a prima facie case regarding his COPD
and thus that the ALJ properly invoked the § 20(a) presumption.
The Board rejected an argument by Metro that Claimant needed to
present medical evidence directly linking his COPD to the
exposure to establish his prima facie case. The Board also
concluded that the ALJ properly found that Metro failed to rebut
the presumption on the basis that Dr. Ripoll’s opinion was
equivocal.
Regarding the vertebra fracture, the Board rejected an
argument by Metro that the § 20(a) presumption does not apply to
“secondary injuries,” such as the fracture. The Board also
rejected the argument that the presumption should not have
applied because the fracture was outside the scope of Claimant’s
claim. The Board noted that Claimant had raised the claim for
medical benefits regarding his fracture before both the district
director and the ALJ, and Metro had not contended that it was
surprised by the issue or that any late notice prejudiced its
ability to defend against the claim.
Metro now petitions for review of the Board’s decision.
III.
Metro advances various arguments in support of its petition
for review. We review the Board’s decisions for errors of law
and to determine whether the Board adhered to its standard of
review. See Newport News Shipbuilding & Dry Dock Co. v. Harris,
11
934 F.2d 548, 550 (4th Cir. 1991). The Board’s standard of
review requires that the ALJ’s findings of fact be considered
“conclusive if supported by substantial evidence in the record
considered as a whole.” Newport News Shipbuilding & Dry Dock
Co. v. Director, OWCP, 131 F.3d 1079, 1080 (4th Cir. 1997) (per
curiam) (internal quotation marks omitted). And importantly,
the Act “must be liberally construed in conformance with its
[remedial] purpose.” Northeast Marine Term. Co. v. Caputo, 432
U.S. 249, 268 (1977) (internal quotation marks omitted).
In this appeal, the Director of the Office of Workers’
Compensation Programs of the Department of Labor (the
“Director”), is a respondent. We afford deference to the
Director’s views concerning the construction of the Act because
he has policy-making authority with regard to the Act. See
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 8
F.3d 175, 179 (4th Cir. 1993). When, as here, the Director is
advancing his position in litigation, his position is “entitled
to respect . . . to the extent that it has the power to
persuade.” West Virginia CWP Fund v. Stacy, 671 F.3d 378, 388
(4th Cir. 2011) (internal quotation marks and alteration
omitted). We accord no deference to the Board’s legal
interpretation of the Act since the Board does not serve in a
policy-making role. See Newport News Shipbuilding & Dry Dock
Co. v. Stilley, 243 F.3d 179, 181 (4th Cir. 2001).
12
A.
Regarding Claimant’s COPD, Metro contends that the ALJ
erred in relying on Dr. Ripoll’s opinions to find that Claimant
had established a prima facie case. Metro argues that if Dr.
Ripoll’s opinions were too contradictory to rebut Claimant’s
prima facie case, they must also have been too contradictory to
establish Claimant’s prima facie case in the first place.
This issue is easily disposed of because the ALJ did not
rely on Dr. Ripoll’s opinions as a basis for finding that
Claimant established his prima facie case. The ALJ found that
“Claimant has demonstrated and [Metro] has agreed that a work
related injury occurred February 18, 2008 when Claimant was
exposed to welding and epoxy fumes, leading to an aggravation of
his preexisting COPD.” J.A. 203. Indeed, substantial evidence
supported the ALJ’s finding that Claimant established a prima
facie case. 2 Claimant offered evidence that the day after the
exposure, he was diagnosed with “[e]xacerbation of [COPD]” and
hospitalized for eight days as a result. S.J.A. 1. The
evidence showed that his COPD continued to worsen after that
2
Metro argues that it did not agree that the exposure
aggravated his COPD but only stipulated that “Claimant injured
his pulmonary organs on February 18, 2008 at [Metro’s] place of
business.” J.A. 191. We need not address the effect of this
stipulation in light of our conclusion that substantial evidence
supported the ALJ’s finding that Claimant established a prima
facie case independent of any stipulation.
13
point as well, and his lung function never returned to its pre-
exposure level. This evidence was easily sufficient to satisfy
Claimant’s “fairly light burden,” Bis Salamis, Inc. v. Director,
OWCP, 819 F.3d 116, 127 (5th Cir. 2016), to produce evidence
raising the possibility that the exposure had permanently
aggravated his COPD. Cf. Moore, 126 F.3d at 262 (holding that
ALJ properly invoked presumption regarding claim for back
problems when claimant testified that he experienced back pain
immediately after the accident even though other evidence cast
significant doubt on the credibility of that testimony and
claimant had acknowledged that he had suffered back pain as a
result of another prior injury); Champion v. S&M Traylor Bros.,
690 F.2d 285, 295 (D.C. Cir. 1982) (holding that because “claim
[wa]s supported by far more than enough evidence to remove it
from the category of ‘mere fancy,’” the presumption was
invoked). And, regardless of Dr. Ripoll’s changing opinions
regarding whether he could say to a reasonable degree of medical
certainty that the exposure did permanently worsen Claimant’s
condition, he never opined that it was not possible that the
exposure had that effect.
Metro also suggests that the ALJ improperly required Metro,
in order to rebut the presumption, to actually prove by a
preponderance of the evidence that the exposure did not
aggravate his lung condition. Again, Metro misstates what the
14
ALJ did. The ALJ applied the proper standard, requiring Metro
to proffer evidence that could allow a reasonable factfinder to
infer that Claimant’s lung condition was not permanently
aggravated by the exposure. See Moore, 126 F.3d at 262-63. And
the ALJ rightly concluded that Dr. Ripoll’s July 2012 opinion
that there was no permanent aggravation from the exposure could
not support such a reasonable inference since Dr. Ripoll had
abandoned that opinion.
For all of these reasons, we conclude that substantial
evidence supports the ALJ’s order awarding Claimant medical
benefits for his work-related COPD, and the Board was therefore
correct to affirm.
B.
Metro also argues that the Board erred in affirming the
ALJ’s decision granting Claimant medical benefits for his
vertebra fracture.
1.
Some of Metro’s arguments regarding the fracture relate to
the differences, if any, between how the Act treats primary
injuries – meaning compensable injuries that arise out of, and
occur in the course of, employment – and secondary injuries –
meaning other injuries that develop later as the result of
primary injuries. We will begin by addressing those arguments.
15
Metro does not deny that a secondary injury can qualify as
an “injury” within the meaning of 33 U.S.C. § 902(2), but Metro
maintains that because the fracture was a secondary injury, it
was compensable only if it “naturally or unavoidably result[ed]”
from a primary injury. Metro also argues that because the
fracture was a secondary injury and was not identified in
Claimant’s March 2012 claim form, the § 20(a) presumption should
not have applied concerning the fracture’s compensability
regardless of whether Claimant established a prima facie case.
In questions of statutory interpretation, we begin with the
language of the statute. See Dean v. United States, 556 U.S.
568, 572 (2009). If the statutory language is clear and
unambiguous, “we are duty bound to give effect to that
language.” United States v. Ivester, 75 F.3d 182, 184 (4th Cir.
1996).
As we have discussed, the Act defines “injury,” in relevant
part, as an
accidental injury or death arising out of and in the
course of employment, and such occupational disease or
infection as arises naturally out of such employment
or as naturally or unavoidably results from such
accidental injury.
33 U.S.C. § 902(2). There is no question that “the composition
of [§ 902(2)] is awkward.” Cyr v. Crescent Wharf & Warehouse
Co., 211 F.2d 454, 456 (9th Cir. 1954). At the same time, it is
apparent – and Metro does not dispute – that Congress included
16
in the definition of “injury” both “accidental injury . . .
arising out of and in the course of employment” – primary
injuries – and injuries that “naturally or unavoidably result[]
from such accidental injury” – secondary injuries. See, e.g.,
Jones v. Director, OWCP, 977 F.2d 1106, 1110-12 (7th Cir. 1992);
Cyr, 211 F.2d at 456.
2.
It is at this point in the analysis that the views of the
various participants in this appeal diverge. Metro contends
that because the vertebra fracture was not a primary injury, the
ALJ erred in applying the § 20(a) presumption in determining its
compensability. Relying on two split-panel decisions of the
Fifth Circuit, Metro maintains that the presumption applies only
to questions of whether alleged primary injuries are compensable
and does not apply to questions of whether alleged secondary
injuries are compensable. See Insurance Co. of State of Pa. v.
Director, OWCP, 713 F.3d 779, 784-86 (5th Cir. 2013); Amerada
Hess Corp. v. Director, OWCP, 543 F.3d 755, 761-63 (5th Cir.
2008). Claimant and the Director argue that these two decisions
that Metro relies on were wrongly decided to the extent they
conclude that the presumption does not apply to claims
concerning secondary injuries. And the Director notes that one
judge on each panel expressed disagreement with the majority’s
analysis. See Amerada Hess, 543 F.3d at 765 (Reavley, J.,
17
concurring) (concluding that the presumption should have applied
to the secondary injury if the claimant had established a prima
facie case, but concurring in the majority’s result because the
claimant failed to establish his prima facie case); see also
Insurance Co. of the State of Pa., 713 F.3d at 786 (Graves, J.,
concurring) (noting that although the panel was bound to follow
circuit precedent, he agreed with Judge Reavley that “the
Amerada Hess majority erred in finding that the presumption
created by § 20(a) of the [Act] is inapplicable to a ‘secondary’
injury or an injury not expressly listed on the original claim
form”).
We agree with the Claimant and the Director that the
presumption applies to claims regardless of whether they concern
secondary injuries. By its terms, the § 20(a) presumption is
that the “claim comes within the provisions of th[e] Act.” 33
U.S.C. § 920(a) (emphasis added). As we have explained, the Act
allows claims regarding primary injuries, secondary injuries, or
both. Section 20(a) does not distinguish between claims
concerning primary injuries and those concerning secondary
injuries, and in fact § 20(a) makes no reference to injuries at
18
all. Accordingly, we agree with the Director that the
presumption unambiguously applies to all types of claims. 3
Metro contends that U.S. Industries supports its argument
that the presumption does not apply to secondary injuries, but
we respectfully disagree with Metro’s understanding of that
decision. In U.S. Industries, the claim at issue asserted that
the employee suffered an injury at work on November 19, 1975,
when he was lifting duct work and felt a sharp pain in his neck.
See 455 U.S. at 610, 612. The ALJ denied the claim, finding
that the alleged accident actually had not occurred and that the
employee and his co-worker had testified falsely regarding its
occurrence. See id. at 610. A divided panel of the Board
affirmed. The Court of Appeals vacated, however, on the basis
that the employee could be found to have suffered an “injury”
when he awoke in pain the day after the alleged accident; the
Court of Appeals reasoned that an injury need not occur during
work hours and need not be traceable to a specific work
incident. See id. at 611. The Court of Appeals thus held that
3
Additionally, we know of no reason why Congress would have
put the initial burden on the claimant to produce evidence
actually proving the causation link and other elements in
secondary-injury cases while relieving claimants of that burden
in other cases. See Director, OWCP v. Greenwich Collieries, 512
U.S. 267, 280 (1994) (noting that purpose of the § 920(a)
presumption is “Congress’ recognition that claims such as those
involved here would be difficult to prove”).
19
if the claimant did suffer such an injury, the § 20(a)
presumption would apply to it. See id. at 611-12.
The Supreme Court granted certiorari and reversed, holding
that the Court of Appeals had committed two errors. The first
error concerned the scope of the employee’s claim. The Court
reasoned that the only claim the employee had made was that he
was injured at work on November 19 in an accident the ALJ found
had not actually occurred. See id. at 612. Because the
employee had not claimed that any injury occurred on November
20, there could be no presumption that applied to any November
20 injury. See id. at 612-13. The Court noted that despite the
existence of very liberal rules allowing the amendments of
pleadings and variances between pleading and proof, such
variances cannot be so great that they prejudice an employer’s
ability to defend against a claim. See id. at 613 n.7. In the
case before the Court, the assertion of a November 20 injury was
not supported by the claim form the claimant had filed “or by
the evidentiary record.” Id.
The Court also reasoned that the Court of Appeals erred in
determining that the attack of pain claimant suffered on the
morning of November 20 could qualify as an “injury” within the
meaning of the Act. See id. at 615. That is so because for an
injury to have occurred “in the course of employment,” it “must
have arisen during the employment,” and thus a prima facie claim
20
for compensation must allege an injury that arose while the
claimant was working. Id. However, the only such injury that
the claimant had asserted in his claim was the November 19
injury that the ALJ had found did not actually occur. See id.
at 615-16.
Metro argues that the attack of pain on the morning of
November 20 in U.S. Industries was in essence a secondary injury
and that that status as a secondary injury was the reason that
the Supreme Court did not apply the § 20(a) presumption. We
conclude this is a misreading of U.S. Industries. As the
Director explains, U.S. Industries does not suggest that the
§ 20(a) presumption does not apply to claims of secondary
injuries. Rather, the case merely stands for two propositions:
(1) the presumption applies only to claims of injuries that are
actually made, (2) a claim must include a primary injury, which,
by definition, must arise during work.
In the present case, because the ALJ properly found that
Claimant suffered a compensable primary injury – the
exacerbation of his COPD – U.S. Industries poses no obstacle for
him so long as his claim included the fracture. Metro does not
appear to challenge the conclusions of the ALJ and the Board
that Claimant’s claim evolved to include the fracture even
though the claim form he originally filed in 2012 had only
explicitly mentioned his lung injury. And, U.S. Industries
21
specifically recognized that those making claims under the Act
need not even make claims on claim forms and that “an informal
substitute . . . may be acceptable if it identifies the
claimant, indicates that a compensable injury has occurred, and
conveys the idea that compensation is expected.” Id. at 613 n.7
(internal quotation marks and alterations omitted). The Court
also recognized that “considerable liberality is usually shown
in allowing amendment of pleadings” and in allowing “variance
between pleading and proof,” so long as the amendment or
variance is not so significant that the defendant’s ability to
defend itself is prejudiced. Id. (internal quotation marks and
alterations omitted). On these facts, the ALJ and Board
properly treated Claimant’s claim to include the fracture. As
the Board determined, Metro was not prejudiced by Claimant’s
failure to identify the fracture as part of his claimed injuries
on his original claim form. Even if Metro had not previously
been aware that Claimant sought medical benefits for the
fracture, at the informal conference on May 15, 2012 – 16 months
before the ALJ hearing – the Claimant expressly sought such
benefits, as he did before the ALJ. The ALJ therefore correctly
treated Claimant’s claim as including the fracture and rightly
concluded that the § 20 presumption would apply regarding the
22
compensability of the fracture if Claimant established a prima
facie case. 4
3.
Metro alternatively argues that, even assuming that the
§ 20(a) presumption can apply to secondary injuries, the ALJ
erred by treating the fracture claim as if it were a primary-
injury claim and thus failed to apply the “naturally or
unavoidably results” standard. In this regard, we will discuss
Claimant’s attempt to establish his prima facie case separately
from Metro’s attempt to rebut the presumption.
a.
The ALJ noted that:
[Metro argued that because] the T7 fracture was not
included on the initial claim form, [the § 20(a)
presumption does not apply and] Claimant must
demonstrate that the fracture naturally or unavoidably
arose from the original lung injury. In support,
[Metro] cited two Fifth Circuit cases. This case is
4 The Fifth Circuit’s decisions in Insurance Company of the
State of Pennsylvania and Amerada Hess holding that the § 20(a)
presumption was not properly applied to the secondary injures
seem to be primarily based on the courts’ conclusions that the
claims before them did not include the secondary injuries at
issue, see Amerada Hess Corp. v. Director, OWCP, 543 F.3d 755,
761-62 (5th Cir. 2008); Insurance Co. of State of Pa. v.
Director, OWCP, 713 F.3d 779, 785 (5th Cir. 2013), a
circumstance that would distinguish the present case. To the
extent that the Fifth Circuit decisions may also suggest that
even a secondary injury that was included in the claimant’s
claim could not receive the benefit of the § 20(a) presumption,
their reasons for adopting that position are simply not clear.
23
governed by the law of the . . . Fourth Circuit[,
which] has not articulated such a standard.
J.A. 215 n.1. The ALJ found that Claimant established his prima
facie case by producing evidence that “the workplace exposure
accident could have caused, aggravated, or accelerated the
[fracture].” J.A. 214. Other than in his description of
Metro’s argument, the ALJ made no reference to the “naturally or
unavoidably results” standard in his analysis. We therefore are
inclined to agree with Metro that the ALJ erred in failing to
recognize that the “naturally or unavoidably results” standard
applied.
Because that standard applied, the ALJ should have
recognized that the compensability of the fracture depended on
the fracture (or its aggravation or hastening) naturally or
unavoidably resulting from the primary injury. Consequently,
for Claimant to establish his prima facie case, the ALJ should
have required him to produce evidence that the primary injury
could have naturally or unavoidably caused, aggravated, or
accelerated the fracture. Nevertheless, on the particular facts
of this case, the ALJ’s failure to consider naturalness or
avoidability made no difference. 5
5We note that the primary injury was part of the causal
chain linking the exposure to the secondary injury, so the fact
that the ALJ considered whether Claimant produced evidence of
whether the exposure could have caused, aggravated, or
(Continued)
24
The ALJ reasoned that Claimant demonstrated that the
exposure permanently aggravated his COPD and that “features of
the COPD, namely steroid treatment and excessive coughing,”
could have caused, aggravated, or accelerated the fracture.
J.A. 214. Considering the exacerbation of Claimant’s COPD – and
resulting hospitalization – following the exposure, substantial
evidence supported the ALJ’s finding.
Because the fracture was not a primary injury, the ALJ
should have gone the next step and considered whether Claimant
produced evidence that the fracture (or its aggravation or
hastening) could have naturally or unavoidably resulted from the
primary injury, but this extra step would have posed no hurdle
for Claimant on these facts. Regardless of any possible
argument concerning whether the fracture or its aggravation or
hastening naturally resulted, “naturally or unavoidably results”
is a disjunctive requirement. See Jones v. Director, OWCP, 977
F.2d 1106, 1111 (7th Cir. 1992). Thus, Claimant could establish
his prima facie case simply by showing that the fracture or its
aggravation or hastening could have unavoidably resulted from
accelerated the fracture instead of whether the primary injury
could have caused, aggravated or accelerated the fracture is of
no moment. And Metro makes no complaint regarding this
distinction.
25
the exacerbation of his COPD. 6 But Metro has never suggested any
way that Claimant could have avoided any effect that the
exacerbation of his COPD had on his fracture. Accordingly, were
we to remand for reconsideration in light of the “naturally or
unavoidably results” standard, the ALJ would certainly conclude,
for the same reasons that he found Claimant proved that the
fracture or its aggravation or hastening could have resulted,
that it also could have unavoidably resulted. We will not
engage in such a futile exercise. See George Hyman Constr. Co.
v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992).
b.
Metro also maintains that even if the ALJ correctly invoked
the § 20(a) presumption regarding the fracture, substantial
evidence did not support the ALJ’s finding that Metro failed to
rebut the presumption. We disagree. Again, the ALJ, apparently
not recognizing that he should be applying the “naturally or
unavoidably results” standard, considered only whether Metro
offered evidence sufficient to support a reasonable inference
that the fracture was not caused, aggravated, or accelerated by
the exposure.
6
We offer no opinion regarding whether the “naturally”
prong would have posed any obstacle to Claimant on these facts.
See Jones v. Director, OWCP, 977 F.2d 1106, 1110-14 (7th Cir.
1992) (discussing “naturally or unavoidably results” standard).
26
Metro argues that the ALJ erred in concluding that the
evidence that Claimant used steroids for 22 years prior to the
exposure was not sufficient to support a reasonable inference
that the fracture would have occurred regardless of whether the
exposure occurred. We agree with the ALJ, though, that any such
inference would not be reasonable, but instead would be based on
mere speculation. There is no evidence whatsoever that any
medical professional believed that the aggravation of Claimant’s
lung condition, his increased steroid use, or his increased
cough did not hasten, aggravate, or cause the fracture. At
best, Metro produced evidence that gave rise to a reasonable
inference that it was possible that the fracture was not
hastened, aggravated, or caused by the exposure. That was not
enough to rebut the presumption.
And for the same reasons that we discussed regarding
Claimant’s establishment of his prima facie case, no purpose
would be served by vacating and remanding for application of the
“naturally or unavoidably results” standard as it pertains to
Metro’s attempt to rebut the presumption. Because Metro has not
suggested any way that Claimant could have avoided the fracture
(or its hastening or aggravation) once the exposure occurred,
the ALJ would certainly find again on remand that Metro did not
rebut the presumption.
27
IV.
In sum, because we conclude that the only error the ALJ
committed was in failing to apply the “naturally or unavoidably
results” standard to the fracture claim and because remand for
application of that standard would be a futile exercise, given
that there was no issue presented regarding avoidability, we
deny Metro’s petition for review of the Board’s order affirming
the ALJ’s decision.
PETITION DENIED
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